[Federal Register Volume 78, Number 141 (Tuesday, July 23, 2013)]
[Proposed Rules]
[Pages 44036-44039]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17505]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
10 CFR Part 429
[EERE-2013-BT-NOC-0039]
Appliance Standards and Rulemaking Federal Advisory Committee:
Notice of Intent To Establish the Commercial/Industrial Pumps Working
Group To Negotiate a Notice of Proposed Rulemaking (NOPR) for Energy
Conservation Standards for Commercial/Industrial Pumps
AGENCY: Office of Energy Efficiency and Renewable Energy, U.S.
Department of Energy.
ACTION: Notice of intent.
-----------------------------------------------------------------------
SUMMARY: The U.S. Department of Energy (DOE or the Department) is
giving notice that it intends to establish a negotiated rulemaking
working group under the Appliance Standards and Rulemaking Federal
Advisory Committee (ASRAC) in accordance with the Federal Advisory
Committee Act (FACA) and the Negotiated Rulemaking Act (NRA) to
negotiate proposed Federal standards for the energy efficiency of
commercial/industrial pumps. The purpose of the working group will be
to discuss and, if possible, reach consensus on a proposed rule for the
energy efficiency of commercial/industrial pumps, as authorized by the
Energy Policy and Conservation Act (EPCA) of 1975, as amended. The
working group will consist of representatives of parties having a
defined stake in the outcome of the proposed standards, and will
consult as appropriate with a range of experts on technical issues.
DATES: Written comments and request to be appointed as members of the
working group are welcome and should be submitted by August 22, 2013.
ADDRESSES: Interested person may submit comments, identified by docket
number EERE-2013-BT-NOC-0039, by any of the following methods:
1. Federal eRulemaking Portal: www.regulations.gov. Follow the
instructions for submitting comments.
2. Email: ASRAC@ee.doe.gov. Include docket number EERE-2013-BT-NOC-
0039 in the subject line of the message.
3. Mail: Ms. Brenda Edwards, U.S. Department of Energy, Building
Technologies Program, Mailstop EE-2J, 1000 Independence Avenue SW.,
Washington, DC 20585-0121. If possible, please submit all items on a
compact disc (CD), in which case it is not necessary to include printed
copies.
4. Hand Delivery/Courier: Ms. Brenda Edwards, U.S. Department of
Energy, Building Technologies Program, 950 L'Enfant Plaza SW., Suite
600, Washington, DC 20024. Telephone: (202) 586-2945. If possible,
please submit all items on a CD, in which case it is not necessary to
include printed copies.
No telefacsimilies (faxes) will be accepted.
Docket: The docket is available for review at www.regulations.gov,
including Federal Register notices, public meeting attendee lists and
transcripts, comments, and other supporting documents/materials. All
documents in the docket are listed in the www.regulations.gov index.
However, not all documents listed in the index may be publicly
available, such as information that is exempt from public disclosure.
FOR FURTHER INFORMATION CONTACT: John Cymbalsky, U.S. Department of
Energy, Office of Building Technologies (EE-2J), 950 L'Enfant Plaza
SW., Washington, DC 20024. Phone: 202-287-1692. Email:
asrac@ee.doe.gov.
SUPPLEMENTARY INFORMATION:
Preamble
I. Authority
II. Background
III. Proposed Negotiating Procedures
IV. Comments Requested
I. Authority
This notice of intent, announcing DOE's intent to negotiate a
proposed regulation setting energy efficiency standards for commercial/
industrial pumps, was developed under the authority of sections 563 and
564 of the NRA (5 U.S.C. 561-570, Pub. L. 104-320). The regulation
setting energy efficiency standards for commercial/industrial pumps
that DOE is proposing to develop under a negotiated rulemaking will be
developed under the authority of EPCA, as amended, 42 U.S.C. 6311(1)(A)
and 42 U.S.C. 6291 et seq.
II. Background
As required by the NRA, DOE is giving notice that it is
establishing a working group under ASRAC to develop proposed energy
efficiency standards for commercial/industrial pumps. EPCA, as amended,
directs DOE to adopt energy conservation standards for commercial/
industrial pumps for which standards would be technologically feasible
and economically justified, and would result in significant energy
savings. There currently are no energy conservation standards for
commercial/industrial pumps. On June 13, 2011, DOE issued a request for
information (76 FR 34192) regarding:
Definition(s) of pumps, pump product classes, and
diversity of pump types within pump product classes;
Energy use by pumps;
Overview of the industrial and commercial pump market,
including shipments and efficiencies ranges;
Availability and applicability of U.S. and international
test procedures for pumps; and
Assistance and resources available from stakeholders,
states, local jurisdictions, and others.
Comments received, available in the rulemaking docket (EERE-2011-
BT-STD-0031), were used to develop a framework document to explain the
relevant issues, analyses, and processes it anticipates using when
considering new energy conservation standards for commercial/industrial
pumps.
A. Negotiated Rulemaking
DOE has decided to use the negotiated rulemaking process to develop
proposed energy efficiency standards for commercial/industrial pumps.
Under EPCA, Congress mandated that DOE develop regulations establishing
energy efficiency standards for covered residential and commercial
appliances that are designed to achieve the maximum improvement in
energy efficiency that are technologically feasible and economically
justified. 42 U.S.C. 6295(o)(2)(A). The primary reason for using the
negotiated rulemaking process for developing a proposed Federal
standard is that stakeholders strongly support a consensual rulemaking
effort. DOE
[[Page 44037]]
believes such a regulatory negotiation process will be less adversarial
and better suited to resolving complex technical issues. An important
virtue of negotiated rulemaking is that it allows expert dialog that is
much better than traditional techniques at getting the facts and issues
right and will result in a proposed rule that will effectively reflect
Congressional intent.
A regulatory negotiation will enable DOE to engage in direct and
sustained dialog with informed, interested, and affected parties when
drafting the regulation, rather than obtaining input during a public
comment period after developing and publishing a proposed rule. Gaining
this early understanding of all parties' perspectives allows DOE to
address key issues at an earlier stage of the process, thereby allowing
more time for an iterative process to resolve issues. A rule drafted by
negotiation with informed and affected parties is expected to be
potentially more pragmatic and more easily implemented than a rule
arising from the traditional process. Such rulemaking improvement is
likely to provide the public with the full benefits of the rule while
minimizing the potential negative impact of a proposed regulation
conceived or drafted without the full prior input of outside
knowledgeable parties. Because a negotiating working group includes
representatives from the major stakeholder groups affected by or
interested in the rule, the number of public comments on the proposed
rule may be decreased. DOE anticipates that there will be a need for
fewer substantive changes to a proposed rule developed under a
regulatory negotiation process prior to the publication of a final
rule.
B. The Concept of Negotiated Rulemaking
Usually, DOE develops a proposed rulemaking using Department staff
and consultant resources. Typically, a preliminary analysis is vetted
for stakeholder comments after a Framework Document is published and
comments taken thereon. After the notice of proposed rulemaking is
published for comment, affected parties may submit arguments and data
defining and supporting their positions with regard to the issues
raised in the proposed rule. Congress noted in the NRA, however, that
regulatory development may ``discourage the affected parties from
meeting and communicating with each other, and may cause parties with
different interests to assume conflicting and antagonistic positions *
* *.'' 5 U.S.C. 561(2)(2). Congress also stated that ``adversarial
rulemaking deprives the affected parties and the public of the benefits
of face-to-face negotiations and cooperation in developing and reaching
agreement on a rule. It also deprives them of the benefits of shared
information, knowledge, expertise, and technical abilities possessed by
the affected parties.'' 5 U.S.C. 561(2)(3).
Using negotiated rulemaking to develop a proposed rule differs
fundamentally from the Department centered process. In negotiated
rulemaking, a proposed rule is developed by an advisory committee or
working group, chartered under FACA, 5 U.S.C. App. 2, composed of
members chosen to represent the various interests that will be
significantly affected by the rule. The goal of the advisory committee
or working group is to reach consensus on the treatment of the major
issues involved with the rule. The process starts with the Department's
careful identification of all interests potentially affected by the
rulemaking under consideration. To help with this identification, the
Department publishes a notice of intent such as this one in the Federal
Register, identifying a preliminary list of interested parties and
requesting public comment on that list. Following receipt of comments,
the Department establishes an advisory committee or working group
representing the full range of stakeholders to negotiate a consensus on
the terms of a proposed rule. Representation on the advisory committee
or working group may be direct; that is, each member may represent a
specific interest, or may be indirect, such as through trade
associations and/or similarly-situated parties with common interests.
The Department is a member of the advisory committee or working group
and represents the Federal government's interests. The advisory
committee or working group chair is assisted by a neutral mediator who
facilitates the negotiation process. The role of the mediator, also
called a facilitator, is to apply proven consensus-building techniques
to the advisory committee or working group process.
After an advisory committee or working group reaches consensus on
the provisions of a proposed rule, the Department, consistent with its
legal obligations, uses such consensus as the basis of its proposed
rule, which then is published in the Federal Register. This publication
provides the required public notice and provides for a public comment
period. Other participants and other interested parties retain their
rights to comment, participate in an informal hearing (if requested),
and request judicial review. DOE anticipates, however, that the pre-
proposal consensus agreed upon by the advisory committee or working
group will narrow any issues in the subsequent rulemaking.
C. Proposed Rulemaking for Energy Efficiency Standards for Commercial/
Industrial Pumps
The NRA enables DOE to establish an advisory committee or working
group if it is determined that the use of the negotiated rulemaking
process is in the public interest. DOE intends to develop Federal
regulations that build on the depth of experience accrued in both the
public and private sectors in implementing standards and programs.
DOE has determined that the regulatory negotiation process will
provide for obtaining a diverse array of in-depth input, as well as an
opportunity for increased collaborative discussion from both private-
sector stakeholders and government officials who are familiar with
energy efficiency of commercial/industrial pumps.
D. Department Commitment
In initiating this regulatory negotiation process to develop energy
efficiency standards for commercial/industrial pumps, DOE is making a
commitment to provide adequate resources to facilitate timely and
successful completion of the process. This commitment includes making
the process a priority activity for all representatives, components,
officials, and personnel of the Department who need to be involved in
the rulemaking, from the time of initiation until such time as a final
rule is issued or the process is expressly terminated. DOE will provide
administrative support for the process and will take steps to ensure
that the advisory committee or working group has the dedicated
resources it requires to complete its work in a timely fashion.
Specifically, DOE will make available the following support services:
Properly equipped space adequate for public meetings and caucuses;
logistical support; word processing and distribution of background
information; the service of a facilitator; and such additional research
and other technical assistance as may be necessary.
To the maximum extent possible consistent with the legal
obligations of the Department, DOE will use the consensus of the
advisory committee or working group as the basis for the rule the
Department proposes for public notice and comment.
[[Page 44038]]
E. Negotiating Consensus
As discussed above, the negotiated rulemaking process differs
fundamentally from the usual process for developing a proposed rule.
Negotiation enables interested and affected parties to discuss various
approaches to issues rather than asking them only to respond to a
proposal developed by the Department. The negotiation process involves
a mutual education of the various parties on the practical concerns
about the impact of standards. Each advisory committee or working group
member participates in resolving the interests and concerns of other
members, rather than leaving it up to DOE to evaluate and incorporate
different points of view.
A key principle of negotiated rulemaking is that agreement is by
consensus of all the interests. Thus, no one interest or group of
interests is able to control the process. The NRA defines consensus as
the unanimous concurrence among interests represented on a negotiated
rulemaking committee or working group, unless the committee or working
group itself unanimously agrees to use a different definition. 5 U.S.C.
562. In addition, experience has demonstrated that using a trained
mediator to facilitate this process will assist all parties, including
DOE, in identifying their real interests in the rule, and thus will
enable parties to focus on and resolve the important issues.
III. Proposed Negotiating Procedures
A. Key Issues for Negotiation
The following issues and concerns will underlie the work of the
Negotiated Rulemaking Committee on Energy Efficiency Standards for
commercial/industrial pumps:
DOE's key issues include assuring full compliance with
statutory mandates. Congress has mandated that DOE establish minimum
energy efficiency standards that are technologically feasible and
economically justified.
The committee must find ways to balance the goals and
priorities of State regulatory programs and DOE's program for energy
efficiency standards.
Manufacturers desire that standards not diminish or
constrain innovation for these products.
Environmental advocates seek to ensure that standards
achieve the maximum energy savings that are technologically feasible
and economically justifiable.
To examine the underlying issues outlined above, and others not yet
articulated, all parties in the negotiation will need DOE to provide
data and an analytic framework complete and accurate enough to support
their deliberations. DOE's analyses must be adequate to inform a
prospective negotiation--for example, a preliminary Technical Support
Document or equivalent must be available and timely.
B. Formation of Working Group
A working group will be formed and operated in full compliance with
the requirements of FACA and in a manner consistent with the
requirements of the NRA. DOE has determined that the working group not
exceed 25 members. The Department believes that more than 25 members
would make it difficult to conduct effective negotiations. DOE is aware
that there are many more potential participants than there are
membership slots on the working group. The Department does not believe,
nor does the NRA contemplate, that each potentially affected group must
participate directly in the negotiations; nevertheless, each affected
interest can be adequately represented. To have a successful
negotiation, it is important for interested parties to identify and
form coalitions that adequately represent significantly affected
interests. To provide adequate representation, those coalitions must
agree to support, both financially and technically, a member of the
working group whom they choose to represent their interests.
DOE recognizes that when it establishes energy efficiency standards
for residential products and commercial equipment, various segments of
society may be affected in different ways, in some cases producing
unique ``interests'' in a proposed rule based on income, gender, or
other factors. The Department will pay attention to providing that any
unique interests that have been identified, and that may be
significantly affected by the proposed rule, are represented.
FACA also requires that members of the public have the opportunity
to attend meetings of the full committee and speak or otherwise address
the committee during the public comment period. In addition, any member
of the public is permitted to file a written statement with the
advisory committee. DOE plans to follow these same procedures in
conducting meetings of the working group.
C. Interests Involved/Working Group Membership
DOE anticipates that the working group will comprise no more than
25 members who represent affected and interested stakeholder groups, at
least one of whom must be a member of the ASRAC. As required by FACA,
the Department will conduct the negotiated rulemaking with particular
attention to ensuring full and balanced representation of those
interests that may be significantly affected by the proposed rule
governing standards for the energy efficiency of commercial/industrial
pumps. Section 562 of the NRA defines the term interest as ``with
respect to an issue or matter, multiple parties which have a similar
point of view or which are likely to be affected in a similar manner.''
Listed below are parties the Department to date has identified as being
``significantly affected'' by a proposed rule regarding the energy
efficiency of commercial/industrial pumps.
The Department of Energy
Commercial/industrial pumps manufacturers and trade
associations representing manufacturers
Component manufacturers and related suppliers
Utilities
Energy efficiency/environmental advocacy groups
Consumers
One purpose of this notice of intent is to determine whether
Federal standards regarding the energy efficiency of commercial/
industrial pumps will significantly affect interests that are not
listed above. DOE invites comment and suggestions on its initial list
of significantly affected interests.
Members may be individuals or organizations. If the effort is to be
fruitful, participants on the working group should be able to fully and
adequately represent the viewpoints of their respective interests. This
document gives notice of DOE's process to other potential participants
and affords them the opportunity to request representation in the
negotiations. Those who wish to be appointed as members of the working
group, should submit a request to DOE, in accordance with the public
participation procedures outlined in the DATES and ADDRESSES sections
of this notice of intent. Membership of the working group is likely to
involve:
Attendance at approximately five (5), one (1) to two (2)
day meetings;
Travel costs to those meetings; and
Preparation time for those meetings.
Members serving on the working group will not receive compensation
for their services. Interested parties who are not selected for
membership on the working group may make valuable contributions to this
negotiated rulemaking effort in any of the following ways:
The person may request to be placed on the working group
mailing
[[Page 44039]]
list and submit written comments as appropriate.
The person may attend working group meetings, which are
open to the public; caucus with his or her interest's member on the
working group; or even address the working group during the public
comment portion of the working group meeting.
The person could assist the efforts of a workgroup that
the working group might establish.
A working group may establish informal workgroups, which usually
are asked to facilitate committee deliberations by assisting with
various technical matters (e.g., researching or preparing summaries of
the technical literature or comments on specific matters such as
economic issues). Workgroups also might assist in estimating costs or
drafting regulatory text on issues associated with the analysis of the
costs and benefits addressed, or formulating drafts of the various
provisions and their justifications as previously developed by the
working group. Given their support function, workgroups usually consist
of participants who have expertise or particular interest in the
technical matter(s) being studied. Because it recognizes the importance
of this support work for the working group, DOE will provide
appropriate technical expertise for such workgroups.
D. Good Faith Negotiation
Every working group member must be willing to negotiate in good
faith and have the authority, granted by his or her constituency, to do
so. The first step is to ensure that each member has good
communications with his or her constituencies. An intra-interest
network of communication should be established to bring information
from the support organization to the member at the table, and to take
information from the table back to the support organization. Second,
each organization or coalition therefore should designate as its
representative a person having the credibility and authority to ensure
that needed information is provided and decisions are made in a timely
fashion. Negotiated rulemaking can require the appointed members to
give a significant sustained for as long as the duration of the
negotiated rulemaking. Although the ASRAC advisory committee charter
will be in effect for 2 years from the date it is filed with Congress,
DOE expects the working group's deliberations to conclude or be
terminated earlier than that. Other qualities of members that can be
helpful are negotiating experience and skills, and sufficient technical
knowledge to participate in substantive negotiations.
Certain concepts are central to negotiating in good faith. One is
the willingness to bring all issues to the bargaining table in an
attempt to reach a consensus, as opposed to keeping key issues in
reserve. The second is a willingness to keep the issues at the table
and not take them to other forums. Finally, good faith includes a
willingness to move away from some of the positions often taken in a
more traditional rulemaking process, and instead explore openly with
other parties all ideas that may emerge from the working group's
discussions.
E. Facilitator
The facilitator will act as a neutral in the substantive
development of the proposed standard. Rather, the facilitator's role
generally includes:
Impartially assisting the members of the working group in
conducting discussions and negotiations; and
Impartially assisting in performing the duties of the
Designated Federal Official under FACA.
F. Department Representative
The DOE representative will be a full and active participant in the
consensus building negotiations. The Department's representative will
meet regularly with senior Department officials, briefing them on the
negotiations and receiving their suggestions and advice so that he or
she can effectively represent the Department's views regarding the
issues before the working group. DOE's representative also will ensure
that the entire spectrum of governmental interests affected by the
standards rulemaking, including the Office of Management and Budget,
the Attorney General, and other Departmental offices, are kept informed
of the negotiations and encouraged to make their concerns known in a
timely fashion.
G. Working Group and Schedule
After evaluating the comments submitted in response to this notice
of intent and the requests for nominations, DOE will either inform the
members of the working group that they have been selected or determine
that conducting a negotiated rulemaking is inappropriate.
DOE will advise working group members of administrative matters
related to the functions of the working group before beginning. DOE
will establish a meeting schedule based on the settlement agreement and
produce the necessary documents so as to adhere to that schedule. While
the negotiated rulemaking process is underway, DOE is committed to
performing much of the same analysis as it would during a normal
standards rulemaking process and to providing information and technical
support to the working group.
IV. Comments Requested
DOE requests comments on whether it should use negotiated
rulemaking for its rulemaking pertaining to the energy efficiency of
commercial/industrial pumps and the extent to which the issues,
parties, and procedures described above are adequate and appropriate.
DOE also requests comments on which parties should be included in a
negotiated rulemaking to develop draft language pertaining to the
energy efficiency of commercial/industrial pumps and suggestions of
additional interests and/or stakeholders that should be represented on
the working group. All who wish to participate as members of the
working group should submit a request for nomination to DOE.
V. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's notice
of proposed rulemaking.
Issued in Washington, DC, on July 16, 2013.
Kathleen B. Hogan,
Deputy Assistant Secretary for Energy Efficiency and Renewable Energy.
[FR Doc. 2013-17505 Filed 7-22-13; 8:45 am]
BILLING CODE 6450-01-P